B-134168, JANUARY 16, 1958, 37 COMP. GEN. 475

B-134168: Jan 16, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

FOR MEMBERS OF THE UNIFORMED SERVICES WHO WERE DISCHARGED OR RELEASED PRIOR TO THE DATE OF ENACTMENT MUST. MUSTERING-OUT PAYMENT CLAIMS WHICH WERE NOT FILED PRIOR TO JULY 16. BY MEMBERS WHO WERE INTEGRATED INTO A REGULAR COMPONENT AFTER JUNE 27. ARE BARRED. CAPTAIN MULHERN WAS COMMISSIONED AS A SECOND LIEUTENANT IN THE UNITED STATES AIR FORCE RESERVE ON JUNE 23. HE WAS APPOINTED A SECOND LIEUTENANT IN THE REGULAR AIR FORCE. IT IS REPORTED THAT CAPTAIN MULHERN HELD NO COMMISSION IN THE AIR FORCE OF THE UNITED STATES. YOU STATE THAT THOSE PROVISIONS OF LAW APPARENTLY WERE NOT SPECIFICALLY CONSIDERED IN 36 COMP. AS FOLLOWS: ANY MEMBER OF THE ARMED FORCES ENTITLED TO MUSTERING-OUT PAYMENT WHO SHALL HAVE BEEN DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS BEFORE JULY 16.

B-134168, JANUARY 16, 1958, 37 COMP. GEN. 475

MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - TIME FOR FILING CLAIMS THE SPECIFIC TIME LIMITATION--- JULY 16, 1956--- FOR FILING MUSTERING-OUT PAY CLAIMS PRESCRIBED IN THE ACT OF JULY 16, 1952, AS AMENDED, 38 U.S.C. 1013, FOR MEMBERS OF THE UNIFORMED SERVICES WHO WERE DISCHARGED OR RELEASED PRIOR TO THE DATE OF ENACTMENT MUST, UNDER ESTABLISHED RULES OF STATUTORY CONSTRUCTION, PREVAIL OVER THE GENERAL TIME LIMITATION FOR FILING CLAIMS AGAINST THE UNITED STATES IN 31 U.S.C. 71A, AND SUCH SPECIFIC TIME LIMITATION FOR PREVIOUSLY DISCHARGED OR RELEASED MEMBERS MAY NOT BE EXTENDED BY SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 50 U.S.C. APP. 525. MUSTERING-OUT PAYMENT CLAIMS WHICH WERE NOT FILED PRIOR TO JULY 16, 1956, THE TIME LIMITATION PRESCRIBED IN THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED BY THE ACT OF JULY 16, 1952, 38 U.S.C. 1013, BY MEMBERS WHO WERE INTEGRATED INTO A REGULAR COMPONENT AFTER JUNE 27, 1950, AND BEFORE JULY 16, 1952, ARE BARRED.

TO LIEUTENANT COLONEL C. W. GRIFFIN, DEPARTMENT OF THE AIR FORCE, JANUARY 16, 1958:

BY LETTER RECEIVED HERE OCTOBER 21, 1957, THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE FORWARDED YOUR LETTER OF SEPTEMBER 18, 1957, WITH ENCLOSURES, PRESENTING FOR DECISION A VOUCHER STATED IN FAVOR OF CAPTAIN PAUL G. MULHERN, 20877A, FOR MUSTERING-OUT PAY IN THE AMOUNT OF $200 UNDER THE PROVISIONS OF PUBLIC LAW 550, 82D CONGRESS, 38 U.S.C. 901 NOTE.

IT APPEARS FROM THE RECORD AND THE INFORMATION FURNISHED THAT FOLLOWING COMPLETION OF AVIATION CADET TRAINING, CAPTAIN MULHERN WAS COMMISSIONED AS A SECOND LIEUTENANT IN THE UNITED STATES AIR FORCE RESERVE ON JUNE 23, 1950. THEREAFTER, BY SPECIAL ORDERS NO. 160, DATED AUGUST 16, 1950, HE WAS APPOINTED A SECOND LIEUTENANT IN THE REGULAR AIR FORCE, WHICH APPOINTMENT YOU STATE HE ACCEPTED ON SEPTEMBER 23, 1950. IT IS REPORTED THAT CAPTAIN MULHERN HELD NO COMMISSION IN THE AIR FORCE OF THE UNITED STATES. YOU STATE THAT BY LETTER DATED APRIL 16, 1957, THE OFFICER FILED A CLAIM FOR MUSTERING-OUT PAY INCIDENT TO HIS ACCEPTANCE OF A COMMISSION IN THE REGULAR AIR FORCE ON SEPTEMBER 23, 1950.

YOU REFER TO THE TIME LIMITATIONS FOR FILING CLAIMS FOR MUSTERING OUT PAY AS SPECIFIED IN TITLE V OF THE ACT OF JULY 16, 1952 ( PUBLIC LAW 550), 38 U.S.C. 1011, AS AMENDED, AND THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, 37 U.S.C. 691A, AND YOU STATE THAT THOSE PROVISIONS OF LAW APPARENTLY WERE NOT SPECIFICALLY CONSIDERED IN 36 COMP. GEN. 283, OR IN B- 130306, MARCH 13, 1957, 36 COMP. GEN. 645.

SECTION 503 OF TITLE V OF THE ACT OF JULY 16, 1952, 66 STAT. 690, AS AMENDED BY THE ACT OF JULY 26, 1955, 69 STAT. 380, 38 U.S.C. 1013, PROVIDES, IN PART, AS FOLLOWS:

ANY MEMBER OF THE ARMED FORCES ENTITLED TO MUSTERING-OUT PAYMENT WHO SHALL HAVE BEEN DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS BEFORE JULY 16, 1952, SHALL, IF APPLICATION THERE IS MADE ON OR BEFORE JULY 16, 1956, BE PAID SUCH MUSTERING-OUT PAYMENT * * *.

SECTION 3 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, AS AMENDED, 38 U.S.C. 691C, CONTAINS SUBSTANTIALLY THE SAME LANGUAGE AS SECTION 503 ABOVE, AND AUTHORIZES THE PAYMENT OF MUSTERING-OUT PAY IF APPLICATION IS MADE NOT LATER THAN FEBRUARY 3, 1950.

IN OUR DECISION OF OCTOBER 5, 1956, B-129089, 36 COMP. GEN. 283, THE QUESTION AS TO WHETHER THE OFFICER WOULD BE PRECLUDED FROM RECEIVING MUSTERING-OUT PAY BY REASON OF FILING AN APPLICATION SUBSEQUENT TO THE TIME LIMITATIONS PRESCRIBED IN THE MUSTERING-OUT PAYMENT ACT OF 1944 WAS NOT BEFORE US. HOWEVER, IN B-130306, MARCH 13, 1957, 36 COMP. GEN. 645, WE CONSIDERED WHETHER THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, WOULD PRECLUDE PAYMENT TO A MEMBER WHO BECAME ENTITLED TO MUSTERING-OUT PAY RETROACTIVELY TO JUNE 1, 1945, AND WHETHER THE 1940 ACT WOULD PRECLUDE PAYMENT RETROACTIVELY TO JUNE 1, 1945, ON THE BASIS OF THE HOLDING IN OUR DECISION OF OCTOBER 5, 1956, B-129089, 36 COMP. GEN. 283.

THERE IS FOR NOTING THAT IN THE DECISION OF MARCH 13, 1957, 36 COMP. GEN. 645, OUR ANSWERS TO THE QUESTIONS INVOLVING THE ACT OF OCTOBER 9, 1940, WERE BASED ON THE TEN-YEAR PERIOD OF LIMITATIONS FOR FILING CLAIMS UNDER THAT ACT PLUS THE TIME THAT SUCH PERIOD MAY HAVE BEEN EXTENDED BY MILITARY SERVICE UNDER THE PROVISIONS OF SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 50 U.S.C. APP. 525. IN OTHER WORDS, THE CONCLUSION WAS REACHED ON THE PREMISE THAT THE CLAIMS INVOLVED THOSE MEMBERS OR FORMER MEMBERS WHO WERE INTEGRATED INTO A REGULAR COMPONENT ON AND AFTER THE EFFECTIVE DATES OF THE MUSTERING-OUT PAYMENT ACT OF 1944 AND THE ACT OF JULY 16, 1952.

BOTH THE 1944 ACT AND THE 1952 ACT, AS AMENDED, CLEARLY AUTHORIZED THE PAYMENT OF MUSTERING-OUT PAY TO THOSE MEMBERS WHO WERE DISCHARGED OR RELEASED FROM ACTIVE SERVICE PRIOR TO ENACTMENT OF THOSE ACTS PROVIDED APPLICATION WAS FILED WITHIN THE PRESCRIBED TIME LIMITATIONS. UNDER THE EXPRESS PROVISIONS OF SECTION 503 OF THE ACT OF JULY 16, 1952, AS AMENDED, 38 U.S.C. 1013, APPLICATION MUST HAVE BEEN FILED ON OR BEFORE JULY 16, 1956, IN CASES WHERE THE DISCHARGE OR RELIEF INVOLVED HAD OCCURRED BEFORE JULY 16, 1952.

THE ESTABLISHED RULE OF STATUTORY CONSTRUCTION IS THAT WHERE ONE STATUTE DEALS WITH A SUBJECT IN GENERAL TERMS, AND ANOTHER DEALS WITH A PART OF THE SAME SUBJECT IN A MORE DETAILED WAY, THE MORE SPECIFIC WILL PREVAIL UNLESS IT APPEARS THAT THE LEGISLATURE INTENDED TO MAKE THE GENERAL ACT CONTROLLING. HASKINS AND SELLS V. UNITED STATES, 91 C.1CLS. 35; GINSBERG AND SONS V. POPKIN, 285 U.S. 204; DETRICH V. HOWARD, 155 F.2D 307, AND IRIARTE V. UNITED STATES, 157 F.2D 105.

IN THE ABSENCE OF ANY CLEAR EXPRESSION OF CONGRESSIONAL INTENT TO THE CONTRARY, IT IS OUR VIEW THAT SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 50 U.S.C. APP. 525, DOES NOT HAVE THE EFFECT OF EXTENDING THE DATE FOR FILING MUSTERING-OUT PAY APPLICATIONS WHICH IS SPECIFIED IN SECTION 503 OF THE 1952 ACT AND THAT THE CLAIMS OF THOSE MEMBERS WHO WERE INTEGRATED INTO A REGULAR COMPONENT ON OR AFTER JUNE 27, 1950, AND BEFORE JULY 16, 1952, AND WHO DID NOT FILE AN APPLICATION FOR MUSTERING-OUT PAY ON OR BEFORE JULY 16, 1956, ARE BARRED, BY THE EXPRESS PROVISIONS OF THE 1952 ACT, FROM RECEIVING SUCH PAY.

SINCE IT APPEARS THAT CAPTAIN MULHERN WAS INTEGRATED INTO THE REGULAR AIR FORCE BY ACCEPTANCE OF APPOINTMENT ON SEPTEMBER 23, 1950--- PRIOR TO JULY 16, 1952--- AND SINCE HIS APPLICATION FOR MUSTERING-OUT PAY WAS FILED BY LETTER DATED JULY 16, 1957, OR ONE YEAR SUBSEQUENT TO JULY 16, 1956, THE EXPIRATION DATE FOR FILING SUCH CLAIMS AS FIXED IN THE 1952 ACT, AS AMENDED, HIS RIGHT TO MUSTERING-OUT PAY IS BARRED BY THE EXPRESS PROVISIONS OF THAT ACT.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH IS BEING RETAINED HERE.